- (1.) Rule 1 of Order XIII of the Code of Civil Procedure provides for production of documentary evidence "at the first hearing of the suit". The effect of non-production of documents, at the first hearing, is dealt with in Rule 2 of Order XIII, in the following language: "No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of rule I shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing." (underlined for emphasis).
(2.) Rules 1 and 2, referred to above, apply to documents in the possession and power of parties, on which they intend to rely, and also to documents which are ordered to be produced by the Court. Where documents are not in the possession and power of the parties, they cannot and therefore need not be produced at the first hearing. The language of Rule 1 is peremptory. This is so because the object of the rule is to prevent fraud by late production of suspicious documents. The Rule is not, however, penal in nature and the peremptory language of the Rule notwithstanding, Rule 2 invests in Courts of law discretion to accept documents, particularly those which are above suspicion, even though not produced at the first hearing. Since Courts exist to assure fair trials, documentary evidence, even though filed late, should not generally be excluded, if such evidence be needed for proper decision of the case.
(3.) Regarding the expression "first hearing of the suit", as used in Rule 1 of Order XIII and elsewhere in the Code of Civil Procedure, there appears some conflict of judicial opinion. Thus, dealing with a case under Order XI, Rule 1, of the Code, Sarju Prosad, J. of the Patna High Court, observed that the date for appearance given in the summons served on the defendants was the date fixed for hearing of the case (1) Palat Ahir v. Baijnath Mahton, AIR 1952 Pat. 338. A Division Bench of this Court consisting of Chitty and Richardson, JJ., however, observed in the case of (2) Biswanath Sinha v. Kali Charan Sinha, 27 CLJ 119. "As the plaintiffs intended, if they could, to prove the documents as part and parcel of the evidence in support of their claim, they intended to rely on them and under Order XIII, Rule 1 'the parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence in their possession or power on which they intend to rely . . . . . , and all documents which the Court has ordered to be produced'. Under Rule 2 'No documentary evidence not produced under Rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof and the Court receiving any such evidence shall record the reasons for so doing'. Rule 1 speaks of the first hearing of the suit but no difficulty arises as to that because the word 'hearing' is one of those comprehensive words which may be used with a more or less extensive meaning according to the context. Order XIII, Rule 1 which gives the Court power to adjourn the hearing of a suit draws a distinction between the hearing of the suit and the hearing of evidence. There was a hearing of the suit if not on the day when issues were settled, at any rate on the 8th October, 1912, though the hearing resulted only in an adjournment". (Underlined for emphasis);